Applicable admission criteria to the Advocates training programme at the Kenya School of Law

Brief facts

The respondents applied for admission to the advocates training programme (ATP) at the Kenya School of Law (KSL), the appellant, in which some were considered and offered admission letters. However, they were later informed by the Director of the KSL in writing that their respective applications were unsuccessful as their Kenya Certificate of Secondary Education (KSCE) grades were below the grades stipulated in the Kenya School of Law Act (KSL Act).

According to the respondents, the appellant misapplied section 16 of the KSL Act and paragraph 1(a) of the Second Schedule to the Act and arrived at decisions that were unreasonable, and ultra vires its statutory mandate  and a breach of the right to education.  Judgment and decree was entered for the respondents in the trial court. Aggrieved by the judgment and decree, the appellants filed the instant appeal.

Issues

1. Whether the basic requirements for KCSE under section 16 and the Second Schedule to the KSL Act were applicable to applicants who studied in or out of Kenyan universities.
2. Whether an interpretation that section 16 and the Second Schedule to the KSL Act estopped persons who studied in foreign universities from having their KCSE results being considered was discriminatory and violated their right to education.
3. What was the scope of the duties of the Council for Legal Education in regulating how the universities admitted students to pursue various cadres of legal education?
4. What were the factors to consider when interpreting statutes?
5. What type of degree could be considered as a progression towards studying law?
6. What ought to be considered in formulating a system for the progression in legal education?

Held

1. The process of becoming a lawyer started from a lower level of schooling to the time of admission and every such level of education was governed by a set of laws and regulations. The right to education would make no sense if a persons academic qualifications were not recognized by the State on unreasonable grounds.
2. The Legal Education Act established the Council of Legal Education (the Council); the Legal Education Appeals Tribunal; the regulation and licensing of legal education providers and for connected purposes. The Council regulated legal education and training in Kenya offered by legal education providers, licence legal education providers and to supervise legal education providers.
3. The Council had a duty to regulate how the universities admitted students to pursue various cadres of legal education; that was at the certificate, diploma and degree levels. That duty had to be discharged at the point of entry of the student at the institution offering such courses. A legal education provider, had to, at the direction and supervision of the Council, be able to determine whether a student was qualified to pursue studies in law at the time the student applied to join the institution, be it a college or a university.
4. Whereas the Council had powers to make regulations in respect of requirements for the admission of persons seeking to enroll in legal education programmes, it also had the duty to ensure compliance of such regulations at the very point of admission of such persons, at whatever level. It was upon the Council to ensure that all those enrolled to pursue legal education programmes were duly qualified in law to undertake such studies.
5. The KSL trained persons to be advocates under the Advocates Act. KSL had the power to admit persons for the necessary training. Section 16 and the Second Schedule to the KSL Act provided for the criteria for admission of students to the KSL.
6. The interpretation discerned from sections 1(a) and (b) of the Second Schedule to the KSL Act was that the section should be read as a whole. The text was that section 1(a) and (b) was separated by a semicolon, then there were the key elements mentioned after the colon on 1(b) which meant that both sections 1(a) and (b) had to meet the conditions precedent in section 1(b)(i) and (ii). In essence, whether one obtained a degree in a Kenyan or out of a Kenyan university, the basic requirement was the score in ones KCSE results which should correspond to those cited in the Act.
7. In interpreting statutes courts looked at both the text and context in order to ascertain the true legislative intent.  Courts were to give a statute a holistic reading and interpretation in order to ascertain the true legislative intent.
8. It would not make any sense to interpret the section as meaning that two students who scored the same mean grade at KCSE and one decided to study at a university outside Kenya and another at a university in Kenya would be treated differently in considering their entry requirements to the ATP, just because one was in the local university thus did not need to prove whether she/he attained the required score in KCSE or not but subject to the foreign earned degree to KCSE confirmation. That ideally would be negative discrimination and against the principles of natural justice and went beyond the spirit of the Legal Education Act informing the qualifications.
9. A closer look at the provisions of section 16 and the Second Schedule to the KSL Act showed that there were two parts which all were dependent on the qualifications after clause 1(b) of the Second Schedule.  Even in the provision for those who were categorized under paragraph 2 to the extent that they would be eligible for admission after they had passed the pre-bar examination, the intent of the Legislature was that they had to meet the requirements of the law on admission and equally then after application and consideration, sit for the pre-bar exam. Before the amendment of the Second Schedule, it was a condition precedent to all applicants but after the amendment, it became optional and depending on the conditions set by the appellant.
10. The trial courts interpretation that the respondents were eligible for admission on the mere fact that they had completed LLB studies without having regard to their KCSE grades was erroneous. The key entry point to any career course in the Kenyan education system was the KCSE examination results and thus it could not be that just because one graduated from any Kenyan university, the grades obtained at KCSE did not matter or that the certificate itself was of no value at all.
11. It would be discriminative of those who did not study from within Kenya who then according to the respondents were the only persons who were required to have their KCSE results considered. Such stance and finding was unrealistic, unreasonable and was not the intention of the Legislature when drafting the impugned section.
12. The parties relied on the Council of Legal Education (Accreditation and Quality Assurance) Regulations 2012 as they were then in force before the Court of Appeal declared the same to be invalid for want of compliance with the Statutory Instruments Act, 2013 in December 21, 2021. Such invalidation could not apply retrospectively.
13. Progression ideally was the process of developing or moving gradually towards a more advanced state.  The wording in section 8(3)(c) of the Legal Education Act was clear that prior learning and experience in law was what ought to be considered in formulating a system that would see the progression in legal education.
14. A degree in aeronautics or a diploma in interior design for instance, could not be termed as progression towards studying law. Indeed, the only closer aspect contemplated was experience and learning in law culminating in a diploma in law or related course in law. Such a degree and diploma were not to be categorized as a progression in law of whatsoever kind and even if they were, the appellant had to consider the primary requirements in the Act first before reverting to the Regulations and which was the requirement of grades in KCSE.
15. Having obtained a mean grade D Plain, one could not proceed and pursue law and only wave the diploma in other disciplines as a condition for admission to the ATP.
16. The conjunction or in sections 1(a) and 1 to the Second Schedule of the KSL Act, should be read disjunctively as requiring both applicants from recognized universities in Kenya and those from foreign Universities to hold similar qualification. With the use of semi-colon between section 1(a) and (b) of the Act then the conditions followed which meant that one was eligible, firstly, based on their LLB degree either from a Kenyan university or as in section 1(b) from a foreign university but in all situations, the conditions were same and were enlisted therein which were mandatory to all irrespective of whether you had a degree from within or without Kenya.
17. The appellant should be shown to have acted beyond what the law required of it to do as it was the body bestowed with the mandate of ensuring that the legal profession was conducted in a manner that uplifted and upheld the law and standards. There was nothing wrong, illegal, unreasonable, discriminatory or unconstitutional in the conduct of the appellant in the whole process. The respondents were well aware that after completing KCSE, there were cluster points for one pursuing a degree in law and the mandatory subjects. The decision by the appellant was in line with the law and could not, therefore, be faulted.
18. The interpretation being advanced by the respondents points to discrimination between the two lots of students under section 16 of the Act which was not the intent of the section at all. The purpose of the Act and in particular, section 16 was to make it clear, that the requirements for admission to KSL for both local and foreign obtained degrees and the common denominator was the grades attained at KCSE. Any interpretation other than that would only mean negative discrimination. The interpretation given by the trial court if allowed would lead to total absurdity and discrimination.
19. The rejection of the respondents who did not meet the requirement was not a violation of their constitutional rights or infringement of any of their rights to education provided for under article 43(1)(f)of the Constitution; the decision by the appellant declining each and every individual respondent for admission into the ATP for 2020/2021 academic year was made within the law and was upheld.
20. The basic requirements for KCSE under section 16 and the Second Schedule to the KSL Act were for both applicants who studied in or out of Kenyan universities. The section should be read as a whole and not in bits and pieces and the three conditions which were precedent had to be met before admission to KSL. Failure to meet the basic requirements of the qualifications in KCSE as envisaged in the section rendered ones application incompetent and hence ripe for rejection by the appellant. The Council of Legal Education (Accreditation and Quality Assurance) Regulations 2012 could not override the provisions of an Act of Parliament.